Four B.C. patients, including two students, a cancer survivor and a terminally ill cancer patient — all of whom faced unacceptably long waits for care in the public health care system — have joined private clinics owner Dr. Brian Day (shown here) in a lawsuit against the government...
/ Vancouver Sun files

Four B.C. patients, including two students, a cancer survivor and a terminally ill cancer patient, have joined private clinic owner Dr. Brian Day in a lawsuit against the Medical Services Commission, the Minister of Health Services and the Attorney-General of B.C.

All the patients suffered while enduring long waits in the public system, according to the case, which contends they should have the right to seek expedited care in the private system.

“B.C. effectively imposes the death penalty on patients through its policy of rationed care,” Day said, at a press conference Tuesday in the boardroom of the Heenan Blaikie law firm, which is representing him in the case. Day expects it will go all the way to the Supreme Court of Canada and ultimately reshape the health care system.

“Those guilty of supporting or enforcing this legislation [preventing access to private care] while propagating the myth that such laws are good, should reflect on whether they are guilty of complicity in the causation of ... deaths,” Day said, noting a poll of doctors found one-quarter had patients who died while waiting for care.

He also referred to a landmark 2005 Quebec case (Chaoulli) in which the Supreme Court of Canada stated: “The evidence shows that delays in the public health care system are widespread and patients die as a result of waiting lists for public health care.”

None of the plaintiff patients attended the news conference. Day pleaded with the 20 journalists present to respect the plaintiffs’ privacy by not dogging them at home. He said no one twisted their arms to take part in the suit and they won’t be expected to pay any legal fees in the case.

All the plaintiffs sought care from Day or his clinics when they faced long waits in the public system. In a few of the cases, Day did not charge them. He said that was on compassionate grounds, given their financial and health circumstances, not because he wanted to include them in the case.

The Canadian Constitution Foundation, a registered charity, is collecting donations for the litigation, as it is for a similar case in Ontario.

“Our purpose in the current litigation is to ask that B.C. patients suffering on waiting lists have the same protection under the laws of Canada that were granted to Quebec residents,” Day said. ”We reject assertions that it is somehow unethical or immoral to use one’s own funds.”

In court documents filed Tuesday, all of the plaintiffs, including Day, co-owner of the Cambie Surgery Centre and the Specialist Referral Clinic, contend that the Canadian Charter of Rights and Freedoms should give them the right to seek expedited care in the private system, just as “preferred beneficiaries” can for medically necessary, publicly insured services.

• Chris Chiavatti, a Burnaby resident starting at McGill University this fall. In 2009, he injured a knee in phys-ed class. He was referred to an orthopedic surgeon at BC Children’s Hospital who had 400 patients on a waiting list and couldn’t see him until September 2010, nearly two years after his injury.

Chiavatti saw Day instead, in late 2009, and was diagnosed with a tear in his meniscus. Within weeks, he had surgery at the Cambie clinic. The court documents note the irony that if Chiavatti’s teacher, rather than the student, had been injured in the phys-ed class, “the teacher would have been eligible for expedited treatment because of his status as an injured worker, covered by [WorkSafeBC].”

• Mandy Martens, a 36-year-old Langley woman who needed a colonoscopy at Langley Memorial Hospital after she detected blood in her stool. But she was told she’d have to wait nine months. In the meantime, an ultrasound and CT scan detected three masses in her liver but still she couldn’t get quicker access to a specialist so she made an appointment at Day’s Specialist Referral Clinic in June for an expedited colonoscopy.

The private procedure confirmed colon cancer and then she had a resection operation at St. Paul’s Hospital. Martens has had chemotherapy and liver surgery and is reported to be doing well.

• Krystiana Corrado, a 17-year-old elite soccer player who attends Vancouver’s Notre Dame high school who was put on a year-long waiting list for surgery after injuring her knee. Earlier this year, she had reconstruction surgery with Day and now has a chance at a soccer scholarship, the court documents state.

• Erma Krahn, a 79-year-old White Rock resident, was diagnosed with terminal lung cancer in May 2008. She injured her knee and was told she would have to wait a year for surgery. Krahn decided to have surgery with Day instead.

Despite being told she is unlikely to live more than two years, Krahn is feeling well, apart from the pain and immobility caused by her knee injury and wants to remain active as long as possible. “That can only be achieved by having her surgery done outside of the public health care system,” the lawsuit states.

Day said thousands of plaintiffs could have joined the suit but four is a manageable number.

The health minister was unavailable but Ryan Jabs, spokesman for the Ministry of Health, said:

“Our hearts go out to patients and their families when they are struggling with a medical illness and need care, and we want to assure the public that our entire health care system provides appropriate care as quickly as possible.

“In the vast majority of cases, people receive excellent care in a timely fashion. When a physician determines that a patient has an urgent clinical need, the patient does not wait for surgery,” Jabs said, noting about 514,000 operations were performed in B.C. in 2010-11 and of those, 214,000 were wait-listed while the rest were done on an urgent basis.

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